Affiliates and the New FTC Guidelines

Written by Brook Schaaf

Last week the FTC announced the first revision to its Endorsement Guides since 2009.

The FTC’s press release highlights six key revisions that deserve attention: 1) handling of reviews; 2) treatment of incentivized reviews; 3) defining the “clear and conspicuous” requirement, particularly that disclosure must be unavoidable; 4) changing the definition of “endorsements”; 5) “explaining the potential liability of advertisers, endorsers, and intermediaries”; and 6) drawing attention to “child-directed advertising.”

This news played out differently across various media outlets:

• Affiliate marketing’s own Tricia Meyer, the PMA’s Executive Director and herself a lawyer, posted a tidy summary with an emphasis on, of course, the impact to affiliates.
• MediaPost emphasized “Guidance For Influencer Marketing” with nary a mention of affiliate.
• TechCrunch also made no mention of affiliate, and influencer was mentioned only as something dealt with in the past. Its title was “FTC finally proposes ban on fake reviews.” 

The revised guidelines encompass 84 pages in the “Guides Concerning the Use of Endorsements and Testimonials in Advertising” plus a lengthy complementary blog post “FTC’s Endorsement Guides: What People Are Asking.”

Affiliate players are required to comply with these guidelines, though it seems to me the greatest onus is actually on influencers and merchants. For example, “affiliate” makes only four appearances, all in the phrase “affiliate links,” whereas “influencer” or “influencers” appear 51 times.

One imagines time-consuming enforcement will be reserved for the very worst offenders, but legal liability may change many a publisher and advertiser process. The bad news here is that it might slow things down. The good news is that consumers don’t much seem to mind seeing sponsored links — and we could all do with fewer fake reviews.